Disputed precedents at center of same-sex marriage lawsuit

Lawyers representing a same-sex couple in Mobile are asking to file a third brief in a federal lawsuit challenging Alabama’s refusal to recognize their clients’ marriage — another stumbling block in Cari Searcy’s four-year attempt to legally adopt her wife Kimberly McKeand’s son.

The couple filed suit against Gov. Robert Bentley and Attorney General Luther Strange in May, after two lower courts — including the Mobile County Probate Court — denied Searcy’s multiple attempts to legally adopt McKeand’s biological child under the state’s Stepparent Adoption clause.

Bentley was later dismissed, but Strange remains a key defendant in a case both parties are prepared to appeal no matter what decision U.S. Magistrate Judge Katherine Nelson recommends.

Searcy and McKeand were married in California in 2008, but current Alabama laws will not allow the state to recognize their marriage — making Searcy a legal stranger to the child she has helped raise since birth.

The court only allows each party to file two briefings and as of Nov. 13, both parties had hit that mark.

However David Kennedy, who along with Christine Hernandez represents the plaintiffs, said the state’s most recent response suggests Strange and his attorneys have “misconstrued or misunderstood” some of the primary issues in the case.

According to a brief filed by Strange’s office Nov. 13, the state views the case today as Searcy asking to “redefine marriage in Alabama” as it is defined in California. A definition of marriage described in the state’s case as “the decree of a single unelected federal judge” and “as an institution that is concerned exclusively with the affection of adults.”

“The definition adopted by Alabama from its inception as a state, derived from ancient law and custom, does not include same-sex relationships or many other non-marital relationships because they are inherently non-marital,” the state’s response reads. “This is not to say that same-sex couples (or other non-marital ensembles) do not share love or commitment, that their relationships lack dignity or that prejudice should be tolerated. But while the law must and should recognize the value, freedom and dignity of all Alabama citizens, a same-sex intimate relationship, like so many other human relationships, is not a ‘marriage’ as that term is recognized in Alabama law.”

Hernandez said the response is equivalent to the state saying “get your own word.” She also said it’s contradicted because state lawmakers “went out of their way” to include civil unions, domestic partnerships and any same-sex unions performed in other states when drafting the Sanctity of Marriage Act, a referendum that effectively banned any same-sex union when it was passed by an 81 percent majority in 2006.

“In our second brief we cited an Attorney General’s opinion by Charles Graddick from the late ‘80s that basically said, ‘there was no clear definition that excludes same sex couples and no provision that allowed it either,’” Hernandez said.

Strange and his team have used the Sanctity Act in his defense, saying, “Alabama should be able to debate the issue of marriage.”

“A ruling for the defendant does not mean that Alabama will never redefine marriage,” the state’s brief reads. “It would simply leave that decision where Schuette says it should lie: with the people.”

Still, Hernandez and Kennedy maintain the state’s refusal to recognize legal marriages performed in other states is based in “animus” or hostility toward homosexuals, even if it was approved by the voters.

Strange’s response doesn’t assert that there has never been animus against gays and lesbians, but instead says in essence that the “conjugal definition” of marriage or Alabama law can’t be the origin of that animus.

“I’m sure every voter had a different feeling in their heart, but the effect of the law is still the same,” Kennedy said. “Animus can be present wherever you’re singling out a group of people and there is no apparent reason for doing so. The state has gone out of its way to target same-sex couples.”

Kennedy said there are no disputed facts in the case, but rather he and Hernandez disagree with the state on the interpretation of current laws and of previous court decisions. Kennedy also said same-sex marriage and marriage recognition is one of the most “rapidly moving” legal issues today — which can make following the precedents set in courts around the country especially difficult.

Previous court decisions are a large part of the argument from both sides. The 1972 case Baker v. Nelson, which upheld Minnesota courts’ decision to rule against a same-sex marriage,was cited heavily in the state’s initial brief.

Hernandez and Kennedy then claimed the validity of that case should have been “abandoned” in subsequent cases — most notably the “Windsor case,” which struck down part of the Defense of Marriage Act or DOMA.

The state responded citing a recent decision in the Sixth Circuit, which upheld same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee — though it did acknowledge the growing number of court cases that have struck down similar bans in other states.

If allowed to file another brief, Kennedy and Hernandez said they would include the most recent ruling on the issue — Conden v. Haley, where a South Carolina judge ruled that “same-sex couples have a right to marry under the U.S. Constitution.” That ruling was issued Nov. 12.

Hernandez reiterated that Searcy’s case isn’t about redefining marriage in Alabama, but rather is about recognizing her and McKeand’s legal marriage in California, which Hernandez says should allow them to both to be considered parents to concerned children in the state’s eyes.

“The state says we’re trying to redefine marriage, which is a mischaracterization,” Hernandez said. “This is a recognition case. Our adoption statute clearly states a spouse can adopt the biological child of their spouse under certain circumstances. That was true until Alabama changed the definition of marriage.”

Though there is no guarantee the plaintiffs will get to file the third brief, both Hernandez and Kennedy are confident in the case they’ve built. They and the plaintiffs — like others across the country — are prepared to appeal the case all the way to the Supreme Court if necessary.

Either way, Kennedy hopes a ruling from Nelson is getting closer.

“We would hope for a quick ruling because of the jeopardy the child is in, in that the biological mother could get hit by a bus today, and he would become an orphan,” Kennedy said.